TERMS OF ACCEPTANCE
This Terms of Service document is an agreement you must accept in order to use Accessibility Shield’s Services. This is a legal agreement (Agreement) between You and Spyomic Inc., doing business as Accessibility Shield (“Company”), for use of the Accessibility Shield services. “You” refers to the individual who registered and/or provided in the accessibilityshield.com website his or her credit card or other payment mechanism for the Services or, if the Services are being purchased on behalf of an entity by an individual authorized to purchase the Services on behalf of such entity, then “You” refers to such entity.
If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these Terms. In that case, the terms or shall also refer to such entity, its staff and its affiliates, as applicable. If you do not have such authority, or if you do not agree with this Agreement you may not use the Service. You acknowledge that this Agreement is a contract between you and Accessibility Shield, even though it is electronic and is not physically signed by you and Accessibility Shield, and it governs your use of the Service.
Violation of any of the terms of service may result in the termination of your account.
ACCESSIBILITY SHIELD hereby grants to Customer a limited, non-exclusive, non-transferable license to use ASx during the Term (as defined in Section 10.1 below), solely for the operation of the Platform (the “License”). The License provides Customer with the number of licenses indicated in an Order Form, as the same may be modified from time to time upon mutual written agreement of the Parties. Fees for additional licenses beyond those indicated in an Order Form will be paid by Customer in accordance with the fees set forth in the Order Form or, if not so indicated, then in accordance with ACCESSIBILITY SHIELD’s current pricing at the time of the request.
Customer’s authorized contractors and employees (“Users”), are allowed access to the Platform pursuant to this Agreement. These Users, whether located in or outside of the U.S. (except where prohibited by law), and their usage of the Platform are Customer’s sole responsibility, and Customer must comply with all applicable laws and security protocols pertaining to their access, including applicable export laws, restrictions, and regulations. For the avoidance of doubt, the Platform should not be made available or copied/distributed to prohibited countries, persons or entities, as indicated in an Office of Foreign Assets Control (OFAC) of the US Department of the Treasury list.
White Label Branding.
Platform branding includes incorporation of Customer’s name and logo and skinning of the site in Customer’s selected primary and secondary colors. The standard Platform URL will appear with Customer’s selected word as a subdomain of ASx (e.g. Name.AccessibilityShield.com). Custom or ‘vanity’ URLs, which shall include provision of a Secure Socket Layer (SSL), are available upon request at a one- time fee indicated by ACCESSIBILITY SHIELD. Customer is responsible for clearing any trademark or other intellectual property concerns connected with a custom URL as well as securing the URL via a registrar service. A copyright notice with ACCESSIBILITY SHIELD’s name and Terms of Service (see Section 1.6 below) shall appear on the White Label Platform. ACCESSIBILITY SHIELD may collect, use, share, sell and store data made available via the White Label Platform solely in connection with the Services hereunder and in accordance with this Agreement and all applicable laws. Any other use by ACCESSIBILITY SHIELD, including sharing or selling data, shall require Customer’s prior written consent (see Sections 11 and 12 below).
Customer shall not (a) decompile, reverse engineer, or otherwise attempt to obtain the source code for ASx; (b) sublicense or allow any third party (other than contractors, for whom Customer shall be wholly responsible) to use ASx, except pursuant to the normal operation of the Platform; (c) use the name or proprietary logo(s) of ACCESSIBILITY SHIELD without ACCESSIBILITY SHIELD’s prior written consent; (d) use ASx for any purpose other than the operation of the Platform; (e) use ASx in a manner that interferes with the use of ACCESSIBILITY SHIELD by ACCESSIBILITY SHIELD, its other customers, Creators or Marketers; (f) commence development of a competing electronic platform for the purpose of offering a Creator marketplace; or (g) use the Platform for illegal or fraudulent use.
Incorporation of AccessibilityShield.com’s Online Terms of Service.
Usage of ASx is predicated on the online Terms of Service governing Creators and Marketers found at http://www.AccessibilityShield.com/terms_and_conditions (the “Online Terms”). Customer acknowledges that it has read and agrees to be bound by the Online Terms and will properly describe to users all capabilities and limitations of ASx. Customer represents and warrants that all Creators and Users it adds to the Platform have followed the proper sign-up process and have expressly agreed to the Online Terms in creating their online accounts and will be bound by them. In the event of any conflict between the Online Terms and this Agreement, this Agreement shall govern.
CUSTOMER’S OBLIGATIONS WITH REGARD TO PLATFORM USAGE
Customer shall do the following:
Supervise Platform Users. Customer shall retain responsibility for all its Users of the Platform (whether authorized or not) to ensure proper use of ASx in accordance with these terms and the Online Terms.
Platform Operation. Customer shall (a) use ASx and Platform only in an operating environment (e.g., hardware and software) approved by ACCESSIBILITY SHIELD; and (b) install any software updates recommended by ACCESSIBILITY SHIELD.
Data Authorization. Customer represents and warrants that it has the authorization and permission to add any information it collects, including the information of Creators, into the Platform, that all Creators will expressly agree to the Online Terms of the platform, and will utilize the Platform in the manner, and within the parameters, indicated by ACCESSIBILITY SHIELD.
Compliance with Applicable Laws. Customer, in operating the Platform and performing under this Agreement, shall comply with all applicable laws, rules and regulations, including but not limited to securities, privacy, and consumer protection laws.
All amounts contemplated under this Agreement (including but not limited to transactions, payments, licensing or training fees, and the like) shall be in U.S. Dollars (USD). Customer is to pay ACCESSIBILITY SHIELD the License Fee, Transaction Fees, and any other fees for Services ordered (such as Customization Fees, Customer Success Support Fees, training, etc.) as billed and defined in an Order Form.
To the extent Customer reasonably disputes an invoice or portion thereof, it shall remain liable to remit payment to ACCESSIBILITY SHIELD for all undisputed amounts. If ACCESSIBILITY SHIELD has provided Customer or Client written notice of its failure to pay and allowed fifteen (15) days to cure, ACCESSIBILITY SHIELD may in its sole discretion charge interest on any outstanding balances at a rate equal to the lesser of: (i) 18% per annum (or 1.5% per month); or (ii) the maximum amount permitted by applicable law. Interest will be computed commencing as of the business day after the original due date until and including the date payment is made, unless paid during the fifteen-day cure period, in which case no interest shall be due. Payments will be credited first to late payment charges and next to the unpaid balance. Customer or Client shall be responsible for all collection costs and/or legal expenses necessitated by lateness or default in payment.
Further, should Customer fail to pay the fees as agreed, ACCESSIBILITY SHIELD in its sole discretion has the right to immediately suspend the Services or terminate this Agreement for cause.
The fees described in this Agreement are exclusive of all federal, state, municipal, or other government excise, sales, use, value-added, gross receipts, personal property, occupational, or other taxes in the United States or the Exclusive Territory now in force or enacted in the future, and Customer shall calculate and pay any such tax (excluding taxes on ACCESSIBILITY SHIELD’s net income) that may be due or owing, now or at any time in the future.
Transaction Prepayment. For the initial Term of this Agreement, all transactions conducted within the Platform and all Fees due shall be paid via Customer’s company check, ACH, or, if approved by ACCESSIBILITY SHIELD, via Customer’s valid and authorized credit card account.
Account Threshold. A Customer’s credit balance and account threshold is determined based on a variety of factors and what credit limit may be allocated across Customer’s account balances is determined within ACCESSIBILITY SHIELD’s sole discretion and subject to change.
FUNCTIONALITY OF PLATFORM
Initial Functionality. ACCESSIBILITY SHIELD may have demonstrated ASx to Customer (the “Demonstration Version”). At the time the Platform is made available to Customer, the Platform will have substantially the same “look and feel,” features, and functionality of the Demonstration Version and no fewer features and no less functionality than the base versions of the comparable product delivered to other customers of ACCESSIBILITY SHIELD, except for customized features and functionality separately specified and purchased by other customers.
Future Functionality. Following delivery of the Platform to Customer, ACCESSIBILITY SHIELD shall make such additional features and functionality as ACCESSIBILITY SHIELD makes available to its customers generally without charge and without the need for consent of Customer. Features and functionality that are not free of charge to all customers shall have an associated fee for usage. ACCESSIBILITY SHIELD shall give Customer notice of such additional features and functionality (and the pricing, as applicable) if they are material to the operation of the Platform.
Customer understands and agrees that neither party may issue any press release or make any public announcement(s) relating to this Agreement or the relationship established by this Agreement without the express prior written consent of the other party (or approval of a Client where the Customer is an agency); however, ACCESSIBILITY SHIELD may seek Customer’s or Client’s written approval to make reasonable limited references to Customer’s or Client’s participation with ACCESSIBILITY SHIELD on its corporate website or in its marketing materials (which may include Customer’s or Client’s name, logo, publicly available Content samples, screen captures of Customer’s or Client’s branded website, and aggregated data from launched campaigns).
Limited Performance Warranty. ACCESSIBILITY SHIELD represents and warrants that the ACCESSIBILITY SHIELD shall conform in all material respects to the specifications set forth in this Agreement and the attached Exhibit 1, including, without limitation, that it will perform substantially as demonstrated in the demonstration version and will be free of material errors or defects, and that all Services will be performed in a good and workmanlike manner. In the event Customer believes that ACCESSIBILITY SHIELD is in violation of this limited performance warranty, Customer shall notify ACCESSIBILITY SHIELD in writing and ACCESSIBILITY SHIELD shall use reasonable commercial efforts to correct any error or defect. In addition, ACCESSIBILITY SHIELD further represents and warrants that (a) ASx shall be free of viruses or other malicious code; (b) ASx and the Services shall comply with all applicable U.S. laws, rules, and regulations; and (c) ACCESSIBILITY SHIELD presently has in effect, and will continue to have in effect throughout the Term of this Agreement, privacy and data security policies, practices and procedures that comply with GDPR and with all applicable U.S. laws, rules, regulations, and best practices in ACCESSIBILITY SHIELD’s industry.
Compliance with Laws. ACCESSIBILITY SHIELD shall conduct its business, including the provision of Services provided hereunder, and develop ASx, in compliance with all applicable U.S. laws, rules and regulations, including, but not limited to applicable securities, privacy, and consumer protection laws.
No Other Warranties. EXCEPT FOR THE WARRANTIES SET FORTH IN THE ABOVE SECTIONS, ASx, INCLUDING ANY ACCOMPANYING MANUALS AND OTHER MATERIALS, AND THE SERVICES, ARE PROVIDED BY ACCESSIBILITY SHIELD “AS IS,” WITHOUT WARRANTY OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR ANY WARRANTY THAT ASx WILL BE ERROR- FREE OR OPERATE WITHOUT INTERRUPTION, OR THAT ASx WILL MEET THE CUSTOMER’S REQUIREMENTS, AND ANY WARRANTIES IMPLIED BY LAW, BY THE COURSE OF DEALING BETWEEN THE PARTIES, OR OTHERWISE, ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
Included Information. For purposes of this Agreement, the term “Confidential Information” means all confidential and proprietary information of a party, including but not limited to (a) financial information; (b) business and marketing plans; (c) trade secrets; (d) the names of employees, owners, and third party contractors to the extent such is not public information; (e) the names, email addresses, and other personally-identifiable information of users of the Platform; (f) security codes; and (g) all documentation provided by ACCESSIBILITY SHIELD.
Excluded Information. For purposes of this Agreement, the term “confidential and proprietary information” shall not include information which, as can be proven by written record, (a) was or becomes generally available to the public other than as a result of a disclosure by the Receiving Party (as defined below) or its directors, officers, employees, agents, contractors or advisors (“Representatives”); (b) was or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party (as defined below) or its advisors, provided that such source is not bound by a confidentiality obligation with Disclosing Party; (c) was within the Receiving Party’s possession prior to it being furnished to the Receiving Party by or on behalf of the Disclosing Party provided the source of such information was not bound by a confidentiality obligation owed to the Disclosing Party with respect thereto; or (d) was developed by the Receiving Party independent of any use or reference to the Confidential Information.
Confidentiality Obligations. During the Term and at all times thereafter in which the information is still deemed “Confidential Information,” neither Party shall disclose Confidential Information of the other Party or use such Confidential Information for any purpose other than in furtherance of this Agreement. Without limiting the preceding sentence, each party shall use at least the same degree of care in safeguarding the other Party’s Confidential Information as it uses to safeguard its own Confidential Information. Notwithstanding the foregoing a Party may disclose Confidential Information (a) if required to do so by legal process (i.e., by a subpoena), provided that such Party shall notify the other Party prior to such disclosure so that such other Party may attempt to prevent such disclosure or seek a protective order; or (b) to any applicable governmental authority as required in the operation of such Party’s business, and even then, limited to no more than the minimum information required.
Injunctive Relief. The Parties acknowledge that a breach of this Section will cause the damaged Party great and irreparable injury and damage, which cannot be reasonably or adequately compensated by money damages. Accordingly, each Party acknowledges that the remedies of injunction and specific performance shall be available for the non-breaching party to seek in the event of such a breach, in addition to money damages or other legal or equitable remedies.
RESPONSIBILITY FOR OPERATION OF PLATFORM
The Parties agree that Customer, and not ACCESSIBILITY SHIELD, is primarily responsible for the Customer’s use and operation of the Platform. The role of ACCESSIBILITY SHIELD is only to provide ASx and the Services, including, without limitation, creating, hosting, and maintaining the Platform, making all pass-through payments to Creators (provided that ACCESSIBILITY SHIELD shall only be held liable to the extent payment was received from Customer), ensuring that it operates the Platform in accordance with applicable laws, for monitoring the content displayed on the Platform, and for establishing the terms of its relationships with users of the Platform. ACCESSIBILITY SHIELD is not responsible for any information or content displayed on or transmitted through the Platform except content provided by ACCESSIBILITY SHIELD or its agents. ACCESSIBILITY SHIELD does not act as nor take on the responsibility or liability of a fiduciary, business or legal advisor, or co-venture.
TERM AND TERMINATION
Term. The term of this Agreement shall be for the period indicated in an active Order Form (the “Term”) and, unless earlier terminated for cause in accordance with this Agreement, will continue for the duration of any Term or renewal term set forth in an applicable Order Form.
Termination for Cause. This Agreement may be terminated at any time if either Party fails to perform any of its material obligations hereunder and such failure continues for fifteen (15) days following written notice from the non-breaching Party. For these purposes (a) any obligation of Customer to pay any amount to ACCESSIBILITY SHIELD shall be treated as a material obligation, and (b) if Customer fails to make a required payment by the due date and fails to remedy such non-payment in 15 days, ACCESSIBILITY SHIELD may, in its discretion, immediately terminate this Agreement and any access to the Platform without giving written notice of such failure or any additional failure.
Effect of Termination/Non-Renewal. Upon any termination or non-renewal of this Agreement, the License shall terminate, and Customer shall have no further rights in the Platform or ASx. Customer is still obligated to pay ACCESSIBILITY SHIELD all amounts owed for the remaining Term pursuant to this Agreement and any outstanding Order Form, as well as any pending or owed Transaction Fees. All Creators that sign up under ASx through the Platform automatically continue as Creators on ASx. In the event Customer terminates this Agreement pursuant to Section 10.2 above, ACCESSIBILITY SHIELD shall refund to Customer all unused Spend amounts paid in advance for the remainder of the Term.
If this Agreement is terminated by You, We will refund You any prepaid fees covering the remainder of the term of all Orders after the effective date of termination. If this Agreement is terminated by Us, You will pay any unpaid fees covering the remainder of the term of all Orders.
OWNERSHIP OF INTELLECTUAL PROPERTY AND DATA
ACCESSIBILITY SHIELD Data. ACCESSIBILITY SHIELD is the exclusive owner of ASx and all of the intellectual property rights associated with ASx, including software, copyrights, and other data not owned by Customers or Creators (“ACCESSIBILITY SHIELD Data”), even if ACCESSIBILITY SHIELD incorporates into ASx suggestions made by Customer. Customer shall not receive any form of compensation for ideas, modifications, suggestions or improvements made to ASx. Except as expressly set forth in this Agreement, Customer is granted no licenses or other rights in or to any ACCESSIBILITY SHIELD Data or any use thereof.
Customer Data. Customer shall own and retain all right, title and interest in and to any data, information, and other content, including any text, files, images, graphics, illustrations, information, data, audio, video, photographs, completed program performance and analytics provided by Customer or Customer’s Users (“Customer Data”).
Additional Responsibility. Customer grants ACCESSIBILITY SHIELD all rights and licenses in and to the Customer Data and other Data necessary for ACCESSIBILITY SHIELD to provide the Services and perform its other obligations under this Agreement. Customer has all rights in and to all Customer Data necessary to permit ACCESSIBILITY SHIELD to provide the Services and perform its other obligations under this Agreement.
DATA PRIVACY AND DATA SECURITY
ACCESSIBILITY SHIELD shall utilize its third party provider, AWS, and other reasonable means to maintain a data privacy and information security protocol, including physical, technical, administrative, and organizational safeguards, that is designed to: (1) ensure the security and confidentiality of the Customer Data; (2) protect against anticipated threats or hazards to the security or integrity of the Customer Data; and (3) protect against unauthorized disclosure, access to, or use of the Customer Data. In addition, ACCESSIBILITY SHIELD can provide SAML 2.0-compatible single sign-on methods for accessing the Platform.
All access to and use of the Services and use of the Platform is subject to ACCESSIBILITY SHIELD‘s Privacy Notice (“Privacy Notice”), a current copy of which is available at https://www.AccessibilityShield.com/privacy_policy. ACCESSIBILITY SHIELD and Customer agree to comply with the current terms of the Privacy Notice. ACCESSIBILITY SHIELD may collect, use, share, and store data made available via the Platform in connection with the Services hereunder and in accordance with ACCESSIBILITY SHIELD’s policies and applicable laws.
LIMITATION OF CLAIMS AND DAMAGES
Limitation of Claims. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES (EVEN IF THIS AGREEMENT IS TERMINATED) FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITY OR BUSINESS ADVANTAGE), WHETHER BASED UPON A CLAIM OR ACTION OF TORT, CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, BREACH OF STATUTORY DUTY, CONTRIBUTION, CLASS ACTION, MASS TORT, INDEMNITY OR ANY OTHER LEGAL THEORY OR CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitation of Damages. ACCESSIBILITY SHIELD’S TOTAL LIABILITY UNDER OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OR FORM OF ACTION, AND WHETHER BEFORE OR AFTER ITS TERMINATION, SHALL NOT EXCEED THE TOTAL OF ALL LICENSE FEE AMOUNTS PAID TO ACCESSIBILITY SHIELD BY THE CUSTOMER UNDER THE CURRENT TERM.
Exceptions. The limitations set forth in Sections 13.1 and 13.2 shall not apply to any claims arising (a) under Section 7 (concerning ACCESSIBILITY SHIELD’s warranties); or (b) under Section 8 (concerning each party’s confidentiality obligations).
INDEMNIFICATION BY CUSTOMER
Customer’s Obligation to Indemnify. Customer will indemnify, hold harmless, and defend ACCESSIBILITY SHIELD, its licensors, service providers, and their respective affiliates, managers, agents and employees, from and against all losses, costs, and expenses, including reasonable attorneys’ fee, from third party claims (including claims made by Creators) to the extent arising from (a) any materials provided, published, or disseminated by Customer; (b) Customer’s or its authorized Users’ negligent acts or omissions in the operation of the Platform (including claims of failure to make payments to Creators), including a material breach of Customer’s obligations, representations, warranties or covenants contained in this Agreement; and (c) violations of any applicable laws.
ACCESSIBILITY SHIELD’s Obligation to Indemnify.
In General. ACCESSIBILITY SHIELD maintains the ASx Platform so that a Customer’s use of ASx as anticipated by this Agreement will not infringe on the U.S. intellectual property rights of any third party. If a claim is made that Customer’s use of ASx infringes on the U.S. intellectual property rights of a third party then ACCESSIBILITY SHIELD will, at its sole expense and as Customer’s sole remedy, indemnify, hold harmless, and defend Customer and its authorized licensed Users, against such claim and pay any final judgment or settlement against Customer, and any reasonable legal fees incurred by Customer, provided that Customer follows the procedure set forth in Section 14.3 below. ACCESSIBILITY SHIELD may, without the knowledge or consent of Customer, agree to any resolution of the dispute that does not require on the part of Customer a payment or an admission of wrongdoing. Without limiting the preceding sentence, ACCESSIBILITY SHIELD may (a) seek to obtain through negotiation the right of Customer to continue using ASx; (b) rework ASx so as to make it non-infringing; or (c) replace ASx, as long as the reworked or replacement ACCESSIBILITY SHIELD does not result in a material adverse change in the “look and feel” or operational characteristics of ASx.
Exceptions. The foregoing indemnification shall not apply to infringement to the extent caused by (a) Customer’s modification or use of ASx other than as contemplated by the Agreement; (b) Customer’s failure to use corrections or enhancements made available by ACCESSIBILITY SHIELD to the extent that such corrections or enhancements would make ASx non-infringing (and ACCESSIBILITY SHIELD notified Customer of that fact in writing (email or internal notification in Platform is also sufficient)); or (c) information, specification or materials provided by Customer or third party acting for Customer which is the cause of such infringement claim.
Notice and Defense of Claims. An indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any claim for which it believes it is entitled to indemnification under the preceding paragraph. Indemnifying Party may, but shall not be required to, assume control of the defense and settlement of such claim provided that: (a) such defense and settlement shall be at the sole cost and expense of Indemnifying Party (b) Indemnifying Party shall be permitted to control the defense of the claim only if Indemnifying Party is financially capable of such defense and engages the services of a qualified attorney, each in the reasonable judgment of the Indemnified Party; (c) Indemnifying Party shall not thereafter withdraw from control of such defense and settlement without giving reasonable advance notice to Indemnified Party; (d) Indemnified Party shall be entitled to participate in, but not control, such defense and settlement at its own cost and expense; (e) before entering into any settlement of the claim, Indemnifying Party shall be required to obtain the prior written approval of Indemnified Party, which shall be not unreasonably withheld, if pursuant to or as a result of such settlement, injunctive or other equitable relief would be imposed against Indemnified Party; and (f) Indemnifying Party will not enter into any settlement of any such claim without the prior written consent of Indemnified Party.
Insurance. ACCESSIBILITY SHIELD maintains insurance coverage in the amounts necessary to perform its obligations and meet its liabilities under this Agreement. Any applicable claims or demands made against ACCESSIBILITY SHIELD under this Agreement will be forwarded to ACCESSIBILITY SHIELD’s insurer. Customer agrees that any information or materials ACCESSIBILITY SHIELD is requested to provide to an insurer in defense of a Customer claim or demand shall not be considered a breach of ACCESSIBILITY SHIELD’s confidentiality obligations.
Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in writing and signed by the Party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver of such right or remedy generally.
Notices. Any notice or document required or permitted to be given under this Agreement may be given by a Party or by its legal counsel and shall be deemed to be given by electronic mail with transmission acknowledgment, to finance@AccessibilityShield.com if to ACCESSIBILITY SHIELD, or to the email address and point of contact on file for Customer, or to such other email address or addresses as the Parties may designate from time to time by notice satisfactory under this Section.
Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania without giving effect to the principles of conflicts of laws and without regard to the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Each party hereby consents to the personal jurisdiction of the Federal or Pennsylvania State courts located in Montgomery County, Pennsylvania, and agrees that, subject to Section 15.4, “Disputes”, all disputes arising from this Agreement shall be prosecuted in such courts without resort to class action proceedings. Each Party hereby agrees that any such court shall have in personam jurisdiction over such Party and consents to service of process by notice sent by regular mail to the address set forth above and/or by any means authorized by Pennsylvania law.
In General. The following procedure shall be followed in the event of a dispute arising from this Agreement:
(a) The principals (C-Level employee) of ACCESSIBILITY SHIELD and Customer shall speak directly concerning the dispute in an attempt to reach a resolution.
(b) If the principals are unable to resolve the dispute, then within five (5) business days they shall exchange written summaries of their respective positions, containing such information and/or proposals as they may determine in their sole discretion, and thereafter meet or speak by telephone to attempt to resolve the dispute. Such summaries shall be deemed in the nature of settlement discussions and shall not be admissible in any further proceeding.
(c) If the principals are still unable to resolve the dispute, they shall participate in mediation conducted by a single neutral mediator chosen by the Parties.
(d) If the principals are unable to resolve the dispute in mediation, they may file a lawsuit in accordance with the terms of this Agreement.
Exceptions. This Section shall not apply to (a) more than one (1) dispute during any six (6) month period; (b) actual or alleged violations of the confidentiality provisions herein; (c) situations in which the failure to immediately file a lawsuit would materially prejudice the interests of either Party; or (d) any dispute following the inability of the Parties to resolve a previous dispute by following such procedures.
Waiver of Jury Trial. EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Assignment. Customer may not assign its rights or obligations under this Agreement without the prior written consent of ACCESSIBILITY SHIELD. Notwithstanding the preceding sentence, Customer may assign its interest in this Agreement to an entity acquiring (by sale, merger, reorganization, or otherwise) substantially all of the transferor’s assets or business, provided that (a) the transferee agrees to assume and perform all obligations of the transferor for periods following the transfer; (b) the transferor remains liable for all obligations prior to the transfer; and (c) the transferee shall not be engaged in the business of developing, marketing, or supporting an electronic platform or related services in competition with ASx.
Dispute Fees and Costs. In the event of a dispute arising under this Agreement, each Party shall be responsible for its own attorneys’ fees and costs. Notwithstanding the foregoing, any action instituted by ACCESSIBILITY SHIELD for recovery of unpaid amounts due under this Agreement, and all recovery costs to collect on such debt (including collection agencies, filing fees, and reasonable attorney’s fees) shall be the responsibility and obligation of Customer.
Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or against any Party. The Parties acknowledge that each Party and its counsel have reviewed or had the opportunity to review and participate in the drafting of this Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting Parties shall not apply to the interpretation of this Agreement.
Force Majeure. Neither Party shall be considered in breach of this Agreement or entitled to terminate this Agreement by virtue of any delay or default in performance by the other Party (other than a delay or default in the payment of money) if such delay or default is caused by Acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the Party whose performance is affected; provided that the Party experiencing the difficulty shall give the other prompt written notice following the occurrence of the cause relied upon, explaining the cause and its effect in reasonable detail and provided such Party resumes performance as soon as is reasonably practicable. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
Signature in Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original.
Signature by Facsimile or Email. An original signature transmitted by facsimile or email shall be deemed to be original for purposes of this Agreement.
No Third-Party Beneficiaries. This Agreement is made for the sole benefit of the Parties. No other persons shall have any rights or remedies by reason of this Agreement against any of the Parties or shall be considered to be third party beneficiaries of this Agreement in any way.
Binding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of each Party, and shall be binding upon the heirs, legal representatives, successors and assigns of each Party.
Titles and Captions. All article, section, and paragraph titles, and captions contained in this Agreement are for convenience only and are not deemed a part of the context hereof.
Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons may require.
Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days, except that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be considered timely if paid, given, or performed on the next succeeding business day.
Exhibits and Attachments. Any exhibits and/or attachments to this Agreement are incorporated within this Agreement and are considered part of this Agreement.
Entire Agreement. This Agreement and the Order Form constitutes the entire agreement between ACCESSIBILITY SHIELD and Customer with respect to the subject matter contained herein and supersedes all prior agreements and understandings between the Parties. In the event of any conflict between similar provisions of the main body of this Agreement and any exhibits, schedules, appendices, etc., this Agreement shall take precedence. Modifications and amendments to this Agreement, including any exhibits, schedules, statements of work, appendices and other attachments, shall be enforceable only if they are in writing and signed by authorized representatives of both Parties. If a court or arbitrator finds any provision of this Agreement to be invalid or unenforceable under applicable law, the remainder of the agreement shall remain in full force and effect and shall be interpreted so as best to carry out the Parties’ intent. This Agreement controls the relationship between the Parties without evidence of either Party’s signature, by virtue of its incorporation via reference or electronic link in a statement of work, insertion order, or the like.
SERVICE LEVEL AGREEMENT GUIDANCE
The guidance contained within this Exhibit 1 is for ACCESSIBILITY SHIELD’s ASx Customers, and is only meant to be ACCESSIBILITY SHIELD’s current good-faith guidelines regarding the uptime, availability, maintenance, and technical troubleshooting resolution times of the Platform.
Uptime and Availability.
ACCESSIBILITY SHIELD’s measure for “uptime” of the Platform is based on its hosing provider’s Web Services’ health checks. Information on health checks can be found by emailing email@example.com
Regular maintenance is necessary for ACCESSIBILITY SHIELD to provide Customers with the best possible user experience on the Platform. ACCESSIBILITY SHIELD will typically need an average of one hour a week for standard, scheduled maintenance. Such maintenance is scheduled (to the best of ACCESSIBILITY SHIELD’s abilities) after standard business hours and multi-step critical maintenance and multi-step critical data migrations shall typically occur on weekends.